Plante v. United States, Case No.: 13cv0310-GPC-KSC.
| Decision Date | 01 October 2015 |
| Docket Number | Case No.: 13cv0310-GPC-KSC. |
| Court | U.S. District Court — Southern District of California |
| Parties | CHRISTINE PLANTE, C.J.S., a minor, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
ORDER DISMISSING C.J.S. AS A PARTY AND GRANTING AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs Christine Plante ("Plaintiff") and C.J.S. (collectively "Plaintiffs") are proceeding pro se and in forma pauperis in a medical malpractice action filed under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b); 2671-80. Before the Court is a Motion for Summary Judgment filed by Defendant United States of America (the "United States" or the "Government"). (ECF No. 73.) The Government contends that Plaintiff has failed to produce the required expert testimony in accordance with the Court's scheduling order to establish a breach of the standard of care or causation. The Government also moves to exclude Plaintiff's designated expert witness from testifying at trial and for the dismissal of Plaintiff C.J.S., a minor child, as a party. (Id.) Plaintiff filed a response on August 21, 2015. (Opp'n, ECF No. 79.) For the following reasons, the Court DISMISSESthe SAC as to C.J.S. for failure to comply with Federal Rule of Procedure 17, GRANTS the Government's motion for summary judgment as to Plaintiff Christine Plante, and DENIES the Government's motion for summary judgment as to Plaintiff C.J.S. The hearing scheduled for October 2, 2015 is hereby VACATED.
Plaintiffs bring this medical malpractice action under the FTCA against the Government for injuries they allegedly suffered as a result of medical care received at the Vista Community Clinic ("VCC"). VCC is a community health clinic that receives federal funding from the Department of Health and Human Services ("HHS"). (Mot. Summ. J. at 2, ECF No. 73.) As part of its funding agreement, HHS has deemed the VCC clinic protected under the FTCA. (Id.)
Plaintiff Plante was treated at VCC from May 2007 to May 2012. (Mot. Summ. J., Exh. C (Plante Dep.) 8:19; 9:11, ECF No. 73-3.) Dr. Michael MacMurry was her primary care physician at VCC from 2007 until May 2012. (Id. 9:6-11.) Plaintiff complained of various medical conditions while she was a patient at VCC, including a hand wound that would not heal (Second Am. Compl. ("SAC") at 2, ECF No. 45), blurry eyesight (Plante Dep. 20:14-17), mucus in her lungs (id. 21:4-6), ligament damage (id. 29:23-25), low blood volume (id. 30:1-5) and Raynaud's syndrome (id.).
Plaintiff identifies VCC employees Sylvia Almanza and Dr. Cynthia McKinney as providing negligent and inadequate medical treatment. Plaintiff alleges that Ms. Almanza "plotted to establish a denial that Ms. Plante suffers from low blood volume and catastrophic damages to soft tissues." (SAC at 1, ECF No. 45.) Specifically, Plaintiff asserts that Ms. Almanza was present during Plaintiff's appointment with Dr. McKinney on November 24, 2010 for "a hand wound that would not form a scab." (Id. at 2; see Plante Dep. 17:1-4, ECF No. 73-2.) At the appointment, Plaintiff suggested "low blood volume" could be the cause of her condition at the appointment, to which Ms. Almanza "shook her head" in denial. (SAC at 2, ECF No. 45.) Dr. McKinney prescribed Plaintiffsulfamethoxazole (an antibiotic) for her hand wound. (Id. at 2-3; see Plante Dep. 17:1-11, ECF No. 73-2.) Plaintiff claims that Dr. McKinney negligently prescribed Plaintiff sulfamethoxazole because she accepted Ms. Almanza's opinion "without careful study of the plaintiff's blood—a necessary step in prescribing this antibiotic to a patient who may have blood problems." (SAC at 2-3, ECF No. 45.) Plaintiff alleges that the sulfamethoxazole she was prescribed is contributing to her "terminal case of methemoglobinemia" and other medical complications. (Id.) Plaintiff asserts that Ms. Almanza's "contributed significantly to her terminal case of methoglobinemia." (Id. at 2.)
Plaintiff also claims that Dr. McKinney called the Department of Social Services "on or after November 24, 2010" to ask a disability analyst to assess Plaintiff for mental disability. (Id. at 4.) Plaintiff complains that as a result of the call a disability analyst stripped away Plaintiff's protective doctor-authorized CalWorks disability. (Id at 4.)
Two weeks after her appointment with Dr. McKinney for her hand wound, Plaintiff attended an appointment with Dr. MacMurry for blurry vision. (Plante Dep. 20:14-18, 23-25, ECF No. 73-2.) At her appointment with Dr. MacMurry, Plaintiff did not discuss the sulfamethoxazole that Dr. McKinney had prescribed for her hand. (Id. 20:6-11.) Plaintiff alleges that Dr. McKinney interfered with the decision of her primary care physician and caused her to suffer a blood vessel obstruction. (SAC at 4.)
Plaintiff stopped going to VCC mid-May 2012. (Id. 9:9-11.) Plaintiff alleges that she received a letter on May 18, 2012 from Barbara Mannino, VCC CEO, stating that Plaintiff "expect[ed] too much of [VCC]." (Id. 10:7-19.)
Plaintiff C.J.S. is Plaintiff's minor son. Plaintiff, on behalf of C.J.S., alleges that C.J.S. was injured as a result of the negligence of the medical staff at VCC. (See SAC at 4, ECF No. 45.)
On February 7, 2013, Plaintiffs filed this medical malpractice action under the FTCA against the Government. (ECF No. 1.) The complaint has been amended twice, ultimately resulting in the current operative pleading, the SAC, filed November 13, 2013. (ECF No. 15.) On August 27, 2013, the Court held an Early Neural Evaluation Conference (ENE). (See ECF No. 27.) On October 10, 2014, the Court held a telephonic Case Management Conference. (See ECF No. 29.)
On October 30, 2013, the Court issued a scheduling order setting discovery deadlines and other pretrial proceedings. (ECF No. 30.) The order instructed the parties to designate their respective experts in writing by March 10, 2015, with the deadline for exchange of rebuttal experts on or before March 24, 2015, and all expert discovery to be completed on or before June 8, 2015. (Id. at ¶ 3, 5.) Plaintiff failed to designate an expert by March 10, 2015 and instead filed a belated motion on March 23, 2015 requesting an extension of expert-related deadlines.
On March 27, 2015, the Court granted Plaintiff's unopposed first request to extend the date for designation of expert witnesses from March 10, 2015 to April 10, 2015. (ECF No. 69 at 2.) The Court cautioned Plaintiff that "further extensions of the pretrial deadlines will not be granted absent a showing of extraordinary good cause." (Id.)
On April 9, 2015, Plaintiff filed a second motion requesting an extension of expert-related deadlines. (ECF No. 70.) Plaintiff stated that on April 7, 2015, she spoke with a Case Manager at the American Medical Forensics Specialists to help Plaintiff locate an expert witness and guardian ad litem for C.J.S. (Id. ¶ 4.) Plaintiff stated that the Case Manager sent Plaintiff an invoice for an expedited service fee but Plaintiff was unable to pay this fee by April 10, 2015, because she had not received a check that had been sent in the mail from Pennsylvania on April 8, 2015. (Id.) On April 13, 2014, the Court granted Plaintiff's second request and extended expert-related deadlines by approximately 30 days, reminding Plaintiff that "it is her responsibility to maintain compliance with the Court's deadlines and to prosecute her case in a timely manner." (ECF No. 71 at 2.) The Courtreset expert-related deadlines as follows: expert designations by May 8, 2015, exchange of rebuttal experts on or before May 22, 2015, exchange of expert reports on or before June 5, 2015, and exchange of rebuttal reports on or before June 19, 2015. (Id.)
On May 8, 2015, Plaintiffs designated Dr. James Alton Burks, Jr., M.D. as their expert witness "to offer his opinions regarding the standard of care, liability, causation, and damages issues in this case," including the "applicable standard of care provided by physicians and nurse-practitioners in a clinical setting." (Mot. Summ. J., Exh. A (Plaintiffs' Expert Witness Designation) at 2, ECF No. 73-2.) Plaintiff stated that Dr. Burks' written expert report "will be produced in accordance with the Court's scheduling order." (Id.) On June 5, 2015, the Government provided Plaintiffs with its expert witness report. (See Mot. Summ. J., Exh. B (Government's Expert Witness Report), ECF No. 73-2.) To date, Plaintiffs have not provided their expert report. (Mot. Summ. J., Decl. of Chu ¶ 2, ECF No. 73-3.)
On July 6, 2015, the Government filed the instant motion for summary judgment. (ECF No. 73.) The Government argues that without expert testimony establishing medical negligence, Plaintiff as a matter of law cannot meet her burden of proof at trial. (Mot. Summ. J. at 1, ECF No. 73.) The Government also moves to exclude Plaintiff's designated expert witness from testifying at trial and to dismiss C.J.S. from the case because Plaintiff, proceeding pro se, does not have standing to pursue claims on behalf of her minor son. (Id.)
On July 16, 2015, Plaintiff filed a third motion requesting extension of expert-related deadlines. (ECF No. 77.) Plaintiff identified Dr. James Alton Burks as Plaintiffs' expert witness but stated that Dr. Burks has become unresponsive (an "absent witness") following an initial phone call. (Id. at 1.) Plaintiff stated that she had provided Dr. Burks with "medical records and payment" and $2,000 as a retainer. (Id.) On August 3, 2015, the Court denied Plaintiff's request, finding that Plaintiff failed to show the diligence or good cause necessary to warrant a third extension. (ECF No. 78 at 3.)
On August 21, 2015, Plaintiff filed a response to the Government's motion forsummary judgment. (Opp'n, ECF No. 79.) Plaintiff states that, as a pro se plaintiff, she "has found it impossible to produce an expert witness without representation by an attorney." (Id. at...
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